(Proposed) Stipulated Final Order for Permanent Injunction ... · officer of Data Guru LLC, Tail bone Security LLC, and Prime Marketing LLC, BRIAN OFFNER, ... Representatives fail

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

FEDERAL TRADE COMMISSION,

Plaintiff,

v.

JUSTIN RAMSEY, individually and as an officer of Data Guru LLC, Tail bone Security LLC, and Prime Marketing LLC,

BRIAN OFFNER, individually and as an officer of Data Guru LLC, Tail bone Security LLC, and Leading Apex LLC,

CHRISTOPHER HERGHELEGIU, individually and as an officer of Data Guru LLC and Tailbone Security LLC,

DATA GURU LLC, a Florida limited liability company,

T AILBONE SECURITY LLC, a Florida limited liability company,

LEADING APEX LLC, a Pennsylvania limited liability company, and

PRIME MARKETING LLC, a Delaware limited liability company,

Defendants.

Case No. 9:17-CV-80032-KAM

STIPULATED FINAL ORDER FOR PERMANENT INJUNCTION AND CIVIL PENALTY JUDGMENT AS TO DEFENDANTS BRIAN OFFNER, DATA

GURU LLC, T AILBONE SECURITY LLC, AND LEADING APEX LLC

Plaintiff, the Federal Trade Commission ("Commission" or "FTC"), filed its Complaint

for Civil Penalties, Permanent Injunction, and Other Relief ("Complaint") in this matter,

pursuant to Sections 5(a), 5(m)(l)(A), 13(b), and 16(a)(l) of the Federal Trade Commission Act

Case 9:17-cv-80032-KAM Document 6-1 Entered on FLSD Docket 01/13/2017 Page 1 of 15

("FTC Act"), 15 U .S.C. §§ 45(a), 45(m)(l )(A), 53(b ), and 56(a)(l ), and Section 6 of the

Telemarketing and Consumer Fraud and Abuse Prevention Act (the "Telemarketing Act"), 15

U.S.C. § 6105. Defendants have waived service of the summons and the Complaint. Plaintiff

and Defendants Brian Offner, Data Guru LLC, Tailbone Security LLC, and Leading Apex LLC

stipulate to the entry of this Stipulated Final Order for Permanent Injunction and Civil Penalty

Judgment ("Order") to resolve all matters in dispute in this action between them.

THEREFORE, IT IS ORDERED as follows:

FINDINGS

I. This Court has jurisdiction over this matter.

2. The Complaint charges that Defendants engaged in acts or practices in violation

of Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), and the FTC's Telemarketing Sales Rule (the

"TSR" or "Rule"), as amended, 16 C.F.R. Part 310, in the Telemarketing of their products and

services.

3. Defendants neither admit nor deny any of the allegations in the Complaint, except

as specifically stated in this Order. Only for purposes of this action, Defendants admit the facts

necessary to establish jurisdiction.

4. Defendants waive any claim that they may have under the Equal Access to Justice

Act, 28 U .S.C. § 2412, concerning the prosecution of this action through the date of this Order,

and agree to bear their own costs and attorneys ' fees. Defendants waive and release any claims

that they may have against Plaintiff, the Commission, and their agents that relate to this action.

5. Defendants and Plaintiff waive all rights to appeal or otherwise challenge or

contest the validity of this Order.

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DEFINITIONS

For the purpose of this Order, the following definitions apply:

A. "Caller Identification Service" means a service that allows a telephone

subscriber to have the telephone number, and, where available, name of the calling party

transmitted contemporaneously with the telephone call , and displayed on a device in or

connected to the subscriber' s telephone.

B. "Defendants" means the Individual Defendant and the Corporate Defendants,

individually, collectively, or in any combination.

1. "Corporate Defendants" means Data Guru LLC, Tailbone Security LLC,

and Leading Apex LLC, and their successors and assigns.

2. "Individual Defendant" means Brian Offner.

C. "Entity-Specific Do Not Call List" means a list of telephone numbers

maintained by a Seller or Telemarketer of persons who have previously stated that they do not

wish to receive Outbound Telephone Calls made by or on behalf of the Seller or Telemarketer.

D. "Established Business Relationship" means a relationship between a Seller and

a person based on: (a) the person's purchase, rental, or lease of the Seller' s goods or services or

a financial transaction between the Seller and person, within the eighteen months immediately

preceding the date of the Telemarketing call; or (b) the person's inquiry or application regarding

a product or service offered by the Seller, within the three months immediately preceding the

date of a Telemarketing call.

E. "Lead Generator" means any person that provides, in exchange for

consideration, consumer information to a Seller or Telemarketer for use in the marketing of any

goods or services.

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F. "National Do Not Call Registry" means the "do-not-call" registry of telephone

numbers maintained by the Commission pursuant to 16 C.F.R. § 310.4(b)(I )(iii)(B).

G. "Outbound Telephone Call" means a telephone call initiated by a Telemarketer

to induce the purchase of goods or services or to solicit a charitable contribution.

H. "Representatives" means Defendant's officers, agents, employees and those

persons in active concert or participation with them who receive actual notice of this Order by

personal service or otherwise.

I. "Seller" means any person who, in connection with a Telemarketing transaction,

provides, offers to provide, or arranges for others to provide goods or services to the customer in

exchange for consideration, whether or not such person is under the jurisdiction of the

Commission.

J. "Telemarketer" means any person who, in connection with Telemarketing,

initiates or receives telephone calls to or from a customer or donor, whether or not such person is

under the jurisdiction of the Commission.

K. "Telemarketing" means a plan, program, or campaign which is conducted to

induce the purchase of goods or services or a charitable contribution, by use of one or more

telephones and which involves more than one interstate telephone call.

ORDER

I. Permanent Ban On Robocalls

IT IS ORDERED that Defendants, whether acting directly or through an intermediary,

are permanently restrained and enjoined from initiating, causing others to initiate, or assisting

others in initiating any Outbound Telephone Call that delivers a prerecorded message.

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II. Prohibition Against Abusive Telemarketing Practices

IT IS ORDERED that, in connection with Telemarketing, Defendants and their

Representatives are permanently restrained and enjoined from engaging in, causing others to

engage in, or assisting others engaging in, any of the following practices:

A. initiating any Outbound Telephone Call to any person at a telephone number on

the National Do Not Call Registry, unless Defendants prove that:

1. Defendants have obtained the express agreement, in writing, of such

person to place calls to that person. Such written agreement shall clearly

evidence such person 's authorization that calls made by or on behalf of

Defendants may be placed to that person, and shall include the telephone

number to which the calls may be placed and the signature of that person;

or

2. Defendants have an Established Business Relationship with such person,

and that person has not previously stated that he or she does not wish to

receive Outbound Telephone Calls made by or on behalf of Defendants;

B. Initiating any Outbound Telephone Call to a person when that person has

previously stated that he or she does not wish to receive an Outbound Telephone Call made by or

on behalf of Defendants;

C. Initiating any Outbound Telephone Call to a telephone number within a g iven

area code when the annual fee for access to the telephone numbers within that area code that are

on the National Do Not Call Registry has not been paid by or on behalf of Defendants, unless the

telephone call is :

I. a solicitation to induce charitable contributions;

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2. to a business;

3. to persons who have given the Seller their express agreement, in writing

and signed, to receive calls from Defendants; or

4. to persons who have an Established Business Relationship with

Defendants;

D. Initiating any Outbound Telephone Call in which Defendants or their

Representatives fail to disclose truthfully, promptly, and in a clear and conspicuous manner the

Defendants' identity, that the purpose of the call is to sell goods or services, and the nature of the

goods or services; and

E. Initiating any Outbound Telephone Call in which Defendants or their

Representatives fail to transmit or cause to be transmitted to any Caller Identification Service in

use by a recipient of a Telemarketing call either: (i) the telephone number and name of the

Telemarketer making the call; or (ii) Defendants' name and customer service telephone number.

III. Monetary Judgment for Civil Penalty and Suspension

IT IS FURTHER ORDERED that:

A. Judgment in the amount of One Million Four Hundred Thousand Dollars

($1,400,000) is entered in favor of Plaintiff against Defendants, jointly and severally, as a civil

penalty.

B. The judgment is suspended, subject to the Subsections below.

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C. The Commission's and Plaintiffs agreement to the suspension of the judgment is

expressly premised upon the truthfulness, accuracy, and completeness of Defendants' sworn

financial statements and related documents (collectively, "financial representations") at the time

submitted to the Commission, namely:

1. The Financial Statement of Individual Defendant Brian Offner signed on

December 4, 2015, including the attachments; and

2. The Financial Statement of Corporate Defendant Leading Apex, signed by

Brian Offner, Owner, on December 14, 2015, including the attachments.

D. The suspension of the judgment will be lifted as to any Defendant if, upon motion

by the Commission or Plaintiff, the Court finds that Defendant failed to disclose any material

asset, materially misstated the value of any asset, or made any other material misstatement or

omission in the financial representations identified above.

E. If the suspension of the judgment is lifted, the judgment becomes immediately

due as to one or more Defendants, as appropriate, in the amount specified in Subsection A above

(which the parties stipulate only for purposes of this Section represents the amount of the civil

penalty for the violations alleged in the Complaint), less any payment previously made pursuant

to this Section, plus interest computed from the date of entry of this Order.

F. Defendants relinquish dominion and all legal and equitable right, title, and interest

in all assets transferred pursuant to this Order and may not seek the return of any assets.

G. The facts alleged in the Complaint will be taken as true, without further proof, in

any subsequent civil litigation by or on behalf of the Commission, including in a proceeding to

enforce its rights to any payment or monetary judgment pursuant to this Order.

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H. Defendants agree that the judgment represents a civil penalty owed to the

government of the United States, is not compensation for actual pecuniary loss, and, therefore, as

to the Individual Defendant, it is not subject to discharge under the Bankruptcy Code pursuant to

I 1 U.S.C. § 523(a)(7).

I. Defendants acknowledge that their Taxpayer Identification Numbers (Social

Security Numbers or Employer Identification Numbers), which Defendants must submit, may be

used for collecting and reporting on any delinquent amount arising out of this Order, in

accordance with 31 U.S.C. § 770 I.

IV. COOPERATION

IT IS FURTHER ORDERED that Defendants Brian Offner, Data Guru LLC, Tailbone

Security LLC, and Leading Apex LLC must fully cooperate with representatives of Plaintiff and

the Commission in this case and in any investigation related to or associated with the

transactions or the occurrences that are the subject of the Complaint. Such Defendants must

provide truthful and complete information, evidence, and testimony. Individual Defendant must

appear and Corporate Defendants must cause its officers, employees, Representatives, or agents

to appear for interviews, discovery, hearings, trials, and any other proceedings that a Plaintiff or

Commission representative may reasonably request upon five days written notice, or other

reasonable notice, at such places and times as a Plaintiff or Commission representative may

designate, without the service of a subpoena.

V. ORDER ACKNOWLEDGMENTS

IT IS FURTHER ORDERED that Defendants obtain acknowledgments of receipt of this

Order:

A. Each Defendant, within seven days of entry of this Order, must submit to the

Commission an acknowledgment of receipt of this Order sworn under penalty of perjury.

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B. For five years after entry of this Order, Individual Defendant for any business that

he, individually or collectively with any other Defendant, is the majority owner or controls

directly, or indirectly, and each Corporate Defendant, must deliver a copy of this Order to:

(1) all principals, officers, directors, and LLC managers and members; (2) all employees, agents,

and other Representatives who participate in conduct related to the subject matter of the Order;

and (3) any business entity resulting from any change in structure as set forth in the Section titled

Compliance Reporting. Delivery must occur within seven days of entry of this Order for current

personnel. For all others, delivery must occur before they assume their responsibilities.

C. From each individual or entity to which a Defendant delivered a copy of this

Order, that Defendant must obtain, within 30 days, a signed and dated acknowledgment of

receipt of this Order.

VI. COMPLIANCE REPORTING

IT IS FURTHER ORDERED that Defendants make timely submissions to the

Commission:

A. One year after entry of this Order, each Defendant must submit a compliance

report, sworn under penalty of perjury:

I. Each Defendant must: (a) identify the primary physical, postal, and email

address and telephone number, as designated points of contact, which

representatives of the Commission and Plaintiff may use to communicate

with Defendant; (b) identify all of that Defendant's businesses by all of

their names, telephone numbers, and physical, postal, email, and Internet

addresses; (c) describe the activities of each business, including the goods

and services offered, the means of advertising, marketing, and sales, and

the involvement of any other Defendant (which Individual Defendant must

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describe if he knows or should know due to his own involvement);

(d) describe in detail whether and how that Defendant is in compliance

with each Section of this Order; and (e) provide a copy of each Order

Acknowledgment obtained pursuant to this Order, unless previously

submitted to the Commission.

2. Additionally, Individual Defendant must: (a) identify all telephone

numbers and all physical, postal , email and Internet addresses, including

all residences; (b) identify all business activities, including any business

for which he performs services whether as an employee or otherwise and

any entity in which he has any ownership interest; and (c) describe in

detail his involvement in each such business, including title, role,

responsibilities, participation, authority, control, and any ownership.

B. For ten years after entry of this Order, each Defendant must submit a compliance

notice, sworn under penalty of perjury, within fourteen days of any change in the following:

1. Each Defendant must report any change in: (a) any designated point of

contact; or (b) the structure of Corporate Defendant or any entity that

Defendant has any ownership interest in or controls directly or indirectly

that may affect compliance obligations arising under this Order, including:

creation, merger, sale, or dissolution of the entity or any subsidiary,

parent, or affiliate that engages in any acts or practices subject to this

Order.

2. Additionally, Individual Defendant must report any change in: (a) name,

including aliases or fictitious name, or residence address; or (b) title or

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role in any business activity, including any business for which he performs

services whether as an employee or otherwise and any entity in which he

has any ownership interest, and identify the name, physical address, and

any Internet address of the business or entity.

C. Each Defendant must submit to the Commission notice of the filing of any

bankruptcy petition, insolvency proceeding, or similar proceeding by or against such Defendant

within fourteen days of its filing.

D. Any submission to the Commission required by this Order to be sworn under

penalty of perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by

concluding: "I declare under penalty of perjury under the laws of the United States of America

that the foregoing is true and correct. Executed on: _ _ " and supplying the date, signatory 's

full name, title (if applicable), and signature.

E. Unless otherwise directed by a Commission representative in writing, all

submissions to the Commission pursuant to this Order must be emailed to [email protected] or

sent by overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement,

Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW,

Washington, DC 20580. The subject line must begin: FTC v. Data Guru LLC, Matter Number

1323254.

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VII. RECORDKEEPING

IT IS FURTHER ORDERED that Defendants must create certain records for ten years

after entry of the Order, and retain each such record for five years. Specifically, Corporate

Defendant, in connection with Telemarketing, and Individual Defendant for any business that he,

individually or collectively with any other Defendants, is a majority owner or controls directly or

indirectly, must create and retain the following records:

A. accounting records showing the revenues from all goods or services sold;

B. personnel records showing, for each person providing services, whether as an

employee or otherwise, that person's: name; addresses; telephone numbers; job title or position;

dates of service; and (if applicable) the reason for termination;

C. records of all consumer complaints concerning the subject matter of the Order,

whether received directly or indirectly, such as through a third party, and any response;

D. all records necessary to demonstrate full compliance with each provision of this

Order, including all submissions to the Commission; and

E. all records relating to businesses providing dialing services from whom

Defendants were provided consumer telephone numbers, including contracts with such dialing

services.

VIII. COMPLIANCE MONITORING

IT IS FURTHER ORDERED that, for the purpose of monitoring Defendants' compliance

with this Order, including the financial representations upon which the judgment was suspended

and any failure to transfer any assets as required by this Order:

A. Within fourteen days of receipt of a written request from a representative of the

Commission or Plaintiff, each Defendant must: submit additional compliance reports or other

requested information, which must be sworn under penalty of perjury; appear for depositions;

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and produce documents for inspection and copying. The Commission and Plaintiff are also

authorized to obtain discovery, without further leave of court, using any of the procedures

prescribed by Federal Rules of Civil Procedure 29, 30 (including telephonic depositions), 31 , 33,

34, 36, 45, and 69.

B. For matters concerning this Order, the Commission and Plaintiff are authorized to

communicate directly with each Defendant. Defendant must permit representatives of the

Commission and Plaintiff to interview any employee or other person affiliated with any

Defendant who has agreed to such an interview. The person interviewed may have counsel

present.

C. The Commission and Plaintiff may use all other lawful means, including posing,

through its representatives as consumers, suppliers, or other individuals or entities, to Defendants

or any individual or entity affiliated with Defendants, without the necessity of identification or

prior notice. Nothing in this Order limits the Commission' s lawful use of compulsory process,

pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-l.

IX. RETENTION OF JURISDICTION

IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for

purposes of construction, modification, and enforcement of this Order.

SO ORDERED, this _ _ day of ____ , 20 I

United States District Judge

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SO STIPULATED AND AGREED:

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Russell Deitch Jan Barlow Attorneys Federal Trade Commission 600 Pennsylvania A venue, NW Washington, DC 20580 (202) 326-2585, -3120 (direct) (202) 326-3395 (facsimile) [email protected], [email protected]

FOR DEFENDANTS:

~. Brian 01'fu~uaUYand as a managing member of Data Guru LLC, Tailbone Security LLC, and Leading Apex LLC

Date I

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Documents

(Proposed) Stipulated Final Order for Permanent Injunction ... · officer of Data Guru LLC, Tail bone Security LLC, and Prime Marketing LLC, BRIAN OFFNER, ... Representatives fail